The Digital Dilemma: Intellectual Property in the Information Age

The Digital Dilemma: Intellectual Property in the Information Age

The Case for an Information Commons: Responses to the Current Copyright Environment BayNet, 5/22/02 Howard Besser Associate Professor UCLA School of Education & Information http://www.gseis.ucla.edu/~howard/ Besser--BayNet--Commodification, 5/22/02 1 Commodification of Information: from Public Good to Tightly Controlled Commodity u u u

Info is a public resource, not a commodity, and like other public spaces, it is part of a Commons Librarians are traditional guardians of this public resource This public resource is under attack Besser--BayNet--Commodification, 5/22/02 2 Attacks fromu u u u Licensing replacing sales

pay-per-use models drastic reduction of public domain and fair use Rightsholiders controlling downstream use Besser--BayNet--Commodification, 5/22/02 3 Licensing replacing sales u u u u u u We wont own the work

Others can control how we use the work The work can be withdrawn if the licensor doesnt like how its used Licensors will try to track who views the work Variant forms of the work will be missing important pieces How will any of these works be preserved? Besser--BayNet--Commodification, 5/22/02 4 Pay-per-use Models u u u u

Discourage browsing Encourage viewers to follow wellestablished authorities Discourages new and innovative exploration Promotes best-sellers Besser--BayNet--Commodification, 5/22/02 5 Importance of Public Domain and Fair Use u u u u What are they?

A robust public domain is essential for a common heritage and for the creation of new works Fair Use is a powerful tool for both education and social commentary First Sale is important for social aims Important mechanisms to assure an Information Commons of available content Besser--BayNet--Commodification, 5/22/02 6 Characteristics of a Commons u u u u

No one owns it Almost no control over it Usually has lots of diversity People can be anonymous there Besser--BayNet--Commodification, 5/22/02 7 What happens in a Commons? u u u u Free speech Exposure to different ideas Exposure to different cultures

Inspiration for new thoughts and creativity Besser--BayNet--Commodification, 5/22/02 8 Historical examples of Commons u u u u Greeks Agora Middle Ages Commons 20th Century parks, streets, town squares electronic version? Besser--BayNet--Commodification, 5/22/02

9 Much more than commerce happens in a Commons u What goes on in these marketplaces is more than commerce. People hang out there, display their identities (usually as members of groups), gather groups of friends, banter and gossip within and among the groups, overhear others' conversations, and inject themselves temporarily into those conversations. In short, they get to know who the other people are who share their society, and keep up with their daily doings. --Lee Felsenstein, The Commons of Information, Dr Dobbs Journal, May 1993 Besser--BayNet--Commodification, 5/22/02

10 Information Commons disappearing mirrors Public Spaces disappearing Besser--BayNet--Commodification, 5/22/02 11 Bath bathrooms Besser--BayNet--Commodification, 5/22/02 circa 1650 12

Paddington Station Besser--BayNet--Commodification, 5/22/02 13 Westwood Farmers Market Besser--BayNet--Commodification, 5/22/02 14 but in the US we have things like Beverly Center Mall Besser--BayNet--Commodification, 5/22/02

15 Street-cams Besser--BayNet--Commodification, 5/22/02 16 3 blocks near Penn Station Map compiled by Matt McCourt and Carl Dahlman, Department of Geography, University of Kentucky Besser--BayNet--Commodification, 5/22/02 17 Enemy of the State Besser--BayNet--Commodification, 5/22/02

18 Public Spaces rapidly disappeared in the late 20th Century u u u u u u Erosion of Inner City, growth of suburbs Decay of public transit No more privacy in public spaces The rise of pseudo-public spaces BroadcastingThe erosion of the public domain Besser--BayNet--Commodification, 5/22/02

19 Static Over Low-Powered Radio NYT Editorial, 3/31/00 Besser--BayNet--Commodification, 5/22/02 20 Our Commons in other spaces are disappearing, with threats to: u u u Free speech Privacy and anonymity

Access to content Besser--BayNet--Commodification, 5/22/02 21 We also have a less physical, more abstract/intellectual commons u Our Information Commons -- a rich set of Content that anyone can draw upon to use in any way they see fit Besser--BayNet--Commodification, 5/22/02 22

An Information Commons of Content is critical for society u u u u u Creators draw on it for new works Scholars use it for new discoveries Social commentators use it to satirize or criticize Teachers teach with it, young people learn from it A key part of public discourse Besser--BayNet--Commodification, 5/22/02

23 But our Information Commons is rapidly eroding u u u u Fair use and first sale severely limited Perpetual and elimination of public domain Licensing Tracking use To freely use it, people need to know theyre not being tracked Besser--BayNet--Commodification, 5/22/02

24 What is Copyright About? u The Congress shall have power ...to provide for the ... general welfare of the United States To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; -US Constitution, Article 1, Section 8 (underlining added) u u (exclusive control) Incentivizing creators to create more (limited time) Establishing a vast and rich public domain for use as new creative materials, as well as for public edification

and appreciation Besser--BayNet--Commodification, 5/22/02 25 What is Copyright? u u u u Copyright is a delicate balance btwn users and creators, but is supposed to be clearly oriented towards the public good Copyright is NOT an unlimited Economic Right

Copyright is really a temporary monopoly right granted to creators in order to fulfill the societal need to increase creativity The Copyright monopoly is temporary, then works become freely available for all purposes Besser--BayNet--Commodification, 5/22/02 27 What has copyright become u u u u (1/2)

Who actually holds Copyright? Licensing is replacing copyright in the digital age Legislation lengthening duration Erosion of Fair Use Besser--BayNet--Commodification, 5/22/02 28 What has copyright become u u (2/2) The larger trend -- moving long-standing

common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply licensing eliminating fair use privacy international arena increasing time before work enters public domain Besser--BayNet--Commodification, 5/22/02 29 Copyright is Everywhere Naples Train Station Besser--BayNet--Commodification, 5/22/02 30

Fair Use is Disappearing u u u u u Criminalizing Fair Use Copyrighting DB contents in perpetituity Proposed Legislation (USCITA, etc.) The 1998 Digital Millenium Copyright Act The 1998 Sonny Bono Term Extension Act Besser--BayNet--Commodification, 5/22/02 31

The erosion of the public domainu u u What is it? What threatens it? Why should we care? Besser--BayNet--Commodification, 5/22/02 32 Whats part of Public Domain? Still is u u u u

u Air Sunlight Numbers God Ideas & Facts** Besser--BayNet--Commodification, 5/22/02 Was u u Water Land 33

Lawyers defining the Public Domain u u u u u u "things in the public domain can be appropriated by anyone without liability for infringement" (Black's, 1996) the laws primary safeguard of the raw material that makes authorship possible (Litman, 1989) a commons that includes those aspects of copyrighted works which copyright does not protect" (Litman, 1990) the converse of property rights in information where the government prohibits certain uses or communications of information to all people but the owner; the

public domain is the range of uses privileged to all (Benkler, 1999) the ultimate source of all new works (because nothing is ever wholly new in and of itself) (Karjala, 1998) copyrights raison detre is to benefit the public by encouraging the production and dissemination of new copyrighted works (Kreiss, 1995) Besser--BayNet--Commodification, 5/22/02 34 Public Domain -- a simpler explanation u u u resources freely available for all members

of society to do whatever they want with them no permissions or fees required no tracking of what you read or use Besser--BayNet--Commodification, 5/22/02 35 Content in Public Domain u u u u Shakespeare Ballads Fables

... Besser--BayNet--Commodification, 5/22/02 36 What threatens it?u u u u u u u An aggressive Content Industry Term extension Returning out-of-copyright works back to copyright

Mickey Mouse Elimination of Fair Use and First Sale Licensing Other forms of Contract Laws Besser--BayNet--Commodification, 5/22/02 37 Pat Schroeder's New Chapter: The Former Congresswoman Is Battling For America's Publishers --Washington Post, 2/7/01 u u u u

u u ...Schroeder is president of the Washington- and New York-based Association of American Publishers, sponsor of the event. Like a nurturing shepherd, she moves gently among her flock. But when she talks about threats to the group, she stiffens her back. And who, you might be wondering, is giving Schroeder and her publishers such a fright? Librarians, of course. No joke. Of all the dangerous and dot-complex problems that American publishers face in the near future -- economic downturns, competition for leisure time, piracy -- perhaps the most explosive one could be libraries. Publishers and librarians are squaring off for a battle royal over the way electronic books and journals are lent out from libraries and over what constitutes fair use of written material. Grossly oversimplified: Publishers want to charge people to read material; librarians want to give it away. "We," says Schroeder, "have a very serious issue with librarians." Besser--BayNet--Commodification, 5/22/02

38 Publishers Accuse Librarians u "They've got their radical factions (librarians), like the Ruby Ridge or Waco types," who want to share all content for free, said Judith Platt, a spokeswoman for the Association of American Publishers. u Besser--BayNet--Commodification, 5/22/02 -ZDNet News, July 12, 2001 39

Content Industry trying to control all Downstream Use users will no longer buy content; theyll license it u u u u u Pushing new legislation Lawsuits Copy protection Contract Law New business models Besser--BayNet--Commodification, 5/22/02

40 Hollings Bill u u All consumer devices sold in US must enforce copy-protect schemes What happens to Fair Use rights? Besser--BayNet--Commodification, 5/22/02 41 www.digitalconsumer.org advocates confirming consumer rights to: u

u u u u Time-shift content Space-shift content make back-up copies of content Translate content into diff formats (e-book becomes audible for blind) No technological barrier should deprive one of their Fair Use rights Besser--BayNet--Commodification, 5/22/02 42 Content Industry Plans

u [advocating legislation that] guarantees publishers control of not only the integrity of an original work, but of the extent and duration of users access to that work, the availability of data about the work and restrictions on forwarding the work to others -- Peter Chernin, News Corp President (owner of HarperCollins) quoted in Publishers Weekly, May 2001 Besser--BayNet--Commodification, 5/22/02 43 Content Industry Attacking all Peerto-Peer u "Napster is about song files, most of which

are pirated On the Gnutella network, you have so many other cool things. The other day I found the complete work of Shakespeare and a classic vampire movie, Nosferatu, which is in the public domain." -Stephen Cho quoted in Jefferson Graham, "Next Napsters Wait in the Wings; As music-swap site goes legit, users threaten to quit," USA Today, Feburary 8, 2001, page 3D. Besser--BayNet--Commodification, 5/22/02 44 Strong Content Control Threatens Creativity Imagine Creators: u Having no public domain to draw upon u Having to negotiate rights for every clip, every drawing, every still image, every sound

sample u Having to renegotiate all these rights every time they redistribute it in a different form or in a different media Besser--BayNet--Commodification, 5/22/02 45 Difficulty of clearing rights affects Completeness of Content u u u u u Image Not Available Image Not Available

Image Not Available Image Not Available Image Not Available Recent changes are reducing the tools artists used to create new works based on old u u u Lengthening copyright terms Shrinking public domain Technical protections that prevent one from accessing content that one may legally be able to fairly use- Besser--BayNet--Commodification, 5/22/02

47 Time before works enter public domain Law Duration 1790 US 14+14 years renewal 1909 US 28+28 yearsrenewal

1976 US 75 years (corporate) life+50 years (individual) 1998 US 95 years (corporate) life+70 years (individual) 1709 British Besser--BayNet--Commodification, 5/22/02 14 years 48

Lengthier Copyright Means Date Term Published 1923-63 67 years if renewed Published 1964-77 28+67 years Created before 1/1/78 Life+70 years or -12/31/02 if not published -12/31/47 if published before end of 2002

whichever is greater Life+70 years (95/120 years corporate) Created after 1/1/78 Besser--BayNet--Commodification, 5/22/02 49 Works that should have already entered the Public Domain (but didn't) u u u u u u

u Virginia Woolf: Jacob's Room Film -- Sherlock Jr. F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the Sanctuary Zane Grey: Code of the West, Steelhead, Tappan's Burro,The Vanishing American, and Down into the Desert Ben Hecht: Fingers at the Window Rudyard Kipling: Independence and London Stone P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A Nasty Corner, and Chester Forgets Himself Besser--BayNet--Commodification, 5/22/02 50

Works that should have entered the Public Domain in the next few years (but won't) u u u u Irving Berlin: Blue Skies (2002) Harry Woods: When the Red, Red Robin Comes Bob, Bob Bobbin' Along (2002) Oscar Hammerstein II and Jerome Kern: Ol' Man River and Showboat (2003) Mickey Mouse (2004) Besser--BayNet--Commodification, 5/22/02 51

Eldred Case u Sonny Bono Term Extension is unconstitutional Besser--BayNet--Commodification, 5/22/02 52 Use of IP Laws to inhibit free speech and stifle creativity u u u u u u

The Wind Done Gone E-Toy Leonardo Finance vs Leonardo Arts Jeff Koons case Barbie Scientology vs. Netcom Besser--BayNet--Commodification, 5/22/02 u u u u u u

u Fans sites (Star Trek, Harry Potter) 2 Live Crew Negativland and U2 Contract with America Snow White & AIDS Disney and Dan ONeil The Rio player 53 Content Industry Myths u u u Recording labels speak for Music Industry

on issues (Pho, Love, ) MPAA speaks for independent filmmakers Publishers speak for writers on issues (ask Tasini)- Besser--BayNet--Commodification, 5/22/02 54 Creators/Users commonality u u u u Make good use of content created by others Want widest possible distribution of content

Benefit from moves away from perpetual locking up of content Have interest in works persisting over long periods of time Besser--BayNet--Commodification, 5/22/02 55 IP Issues for Hypermedia difficulties in Creation u u u u u 20th Century Art was about

contextualization & recontextualizationRequires access to content, but content is increasingly being locked up Vast layers of rights to negotiate Disappearance of fair use and first sale From commons to commodity Besser--BayNet--Commodification, 5/22/02 56 Art builds upon prior Works new works involve repurposing old u u u u u

Collage Pop Postmodern Sampling Shakespeare Besser--BayNet--Commodification, 5/22/02 57 Importance of Info Commons for Content u u u u

Common Heritage (philosophical) New Knowledge incorporates Old (progress) Derivative Works rely upon pre-existing Works (creativity) Social Commentary (free speech) Besser--BayNet--Commodification, 5/22/02 58 Other serious erosions u u u UCITA--shrink-wrap Database Treaty

Anti-Circumvention Felten & SDMI challenge Sklyarov- Besser--BayNet--Commodification, 5/22/02 59 Criminalizing violations Dmitri Sklyarov jailed Besser--BayNet--Commodification, 5/22/02 60 Pseudo-public spaces Economics and Contract Laws

preempting long-standing rights Moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply extending reach beyond first sale to control Use shrink-wraps eliminating any negotiating power (UCITA) shrink-wraps and technological protection dont allow for fair use exemptions licensing curtailing fair use Privacy invasions to prove licensing compliance Besser--BayNet--Commodification, 5/22/02 61 Dangers u u u

u u Eliminating a public domain of information Controlling social/political commentary, satire, creation of new derivative works/recombinant works Criminalizing acts that might possibly impede digital commerce Making sure that the Internet is used only for info consumption, not production Controlling access to older info (controlling history) Besser--BayNet--Commodification, 5/22/02 62 Database Protection Legislation u

The educational exemptions in this bill appear too narrow to support current university information-use practices, and it appears that ANY claim of market harm could nullify the fair use exemptions. u --Dr. Debra W. Stewart, testifying Feb 16, 1998 on behalf of the Association of American Universities in front of the House Judiciary Subcommittee on Courts and Intellectual Property considering proposed Database Protection legislation Besser--BayNet--Commodification, 5/22/02 63

Copyrighting Facts: Proposed Database Extraction legislation u u u No requirement that the DB contain any original content (can copyright facts, government information, etc., taking these out of the Public Domain) DB owner given recourse, even if they didnt suffer harm Implications on: Transformative uses Uses other than those intended by the compiler (citation analysis) Copyrighting court decisions Besser--BayNet--Commodification, 5/22/02

64 Public Space is becoming Private Private Property. Permission to pass revocable at any time. Besser--BayNet--Commodification, 5/22/02 65 The Case for an Information Commons: Responses to the Current Copyright Environment u u u

u u u u u u http://www.gseis.ucla.edu/~howard/Copyright/ http://www.gseis.ucla.edu/~howard/Copyright/commons.html http://ww.info-commons.org (ALA site starting June 2002) http://books.nap.edu/html/digital_dilemma/ http://www.digitalconsumer.org http://www.dfc.org http://www.pdos.lcs.mit.edu/~cananian/UCITA/ http://www.gseis.ucla.edu/~howard/Papers/brook-book.html Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal, May 1993 Besser--BayNet--Commodification, 5/22/02

66 Besser--BayNet--Commodification, 5/22/02 67 An Information Commons: concepts as enablers u u u u A robust public domain Time limits for copyright monopoly Fair use

First sale Besser--BayNet--Commodification, 5/22/02 68 What is an Information Commons and Why Should We Care?u u u Background & importance The disapearing Physical Commons The importance of a Content-rich Information Commons Besser--BayNet--Commodification, 5/22/02

69 Besser--BayNet--Commodification, 5/22/02 70 NRC analysis of Coble Bill u u u u u u reduce the amount of data that can be obtained, particularly from the private sector or public-private partnerships, an increasingly important source of data; increase the cost of obtaining data, particularly from database owners with a monopoly on the data;

restrict access to data for at least 15 years from the time the data was created; discourage the transformation of existing databases into new ones, creating artificial gaps in data availability; prevent the use of data for purposes other than than which it was collected, minimizing the scientific and societal value of original data; and increase restrictions on the use of compilations of all kinds, including works of authorship (e.g. collection of articles) not normally considered to be databases Linn, 2000 Besser--BayNet--Commodification, 5/22/02 71 Pseudo-public spaces Economics and Contract Laws preempting long-standing rights

Moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply extending reach beyond first sale to control Use shrink-wraps eliminating any negotiating power (UCITA) shrink-wraps and technological protection dont allow for fair use exemptions licensing curtailing fair use Privacy invasions to prove licensing compliance Besser--BayNet--Commodification, 5/22/02 72 Further commodification of information u u

Dismantlement of the public sphere in general Attempts to turn everything into a commodity (even things that dont really behave like commodities) Besser--BayNet--Commodification, 5/22/02 73 Why does any of this matter? u u u u u Derivative works

Postmodernism Diminishment of exploration and experimentation Public discourse Democratic values (anyone can be a creator) Besser--BayNet--Commodification, 5/22/02 74 Anti-Circumvention & Rule-Making (1/3) u u Perfectly legal activities (fair use) may be rendered impossible without circumventing technical protection

mechanisms DMCA makes circumvention of these protection mechanisms illegal Besser--BayNet--Commodification, 5/22/02 75 Anti-Circumvention & Rule-Making (1/2) u u DMCA compromise required Rulemaking by LofC as to which circumvention measures should be allowed Concern from library and other communities that circumventing protection mechanisms to engage in perfectly legal acts (like fair use and preservation) would make them subject to criminal penalties

House Bill Section 1201(a). No person shall circumvent a technological protection measure that effectively controls access to a work protected under this title. u While sounding innocuous, what the provision does is create a brand new and unlimited right to control access to copyrighted works. If enacted into law, this new right could bypass the carefully crafted balance between exclusive rights of ownership and public access to works for educational, scholarly, and scientific purposes, which has been part of copyright law for the entire 20th Century. In short, it could eliminate fair use from copyright law. (John Hammer, National Humanities Alliance, 6/5/98) Besser--BayNet--Commodification, 5/22/02 76 Anti-Circumvention & Rule-Making (2/2)

u On 10/28/00, Lof C ruled that the following should be exempted until 10/28/03: Compilations consisting of lists of websites blocked by filtering software applications; and Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence. u Immediate responses of outrage from librarians, consumer protection groups, digital divide groups, etc.- Besser--BayNet--Commodification, 5/22/02 77

Outrage at Anti-Circumvention Rulemaking Decision Digital Future Coalition 10/26/00 press release u u u Unfortunately, todays decision took 70 pages to essentially say that few persons may ever circumvent a technological protection measure even to gain access to a work solely for legitimate noncommercial purposes. Once again, content owners have successfully promoted their own narrow financial interests over the broader public interest in preserving consumer access to literary, scientific, and other works,

deep disappointment that content owners effectively had been given a green light to use technological protection measures to lock up access to copyrighted works. Besser--BayNet--Commodification, 5/22/02 78 Outrage at Anti-Circumvention Rulemaking Decision American Library Assn ALAWON 9:85, October 26, 2000 u u u The Librarian of Congress James Billington has ruled against the

American public and library users by negating fair use in the digital arena.. Because of this decision users of digital information will have fewer rights and opportunities than users of print information. In fact, the pay-for-use scenario that librarians have feared appears to have now become a reality with this rule. "The Copyright Office has issued a misguided ruling taking away from students, researchers, teachers and librarians the long standing basic right of fair use to our Nation's digital resources," said Nancy Kranich, ALA president. "All library users will be impacted." Besser--BayNet--Commodification, 5/22/02 79 Outrage at Anti-Circumvention Rulemaking Decision Congressman Rick Boucher October 27, 2000 press release u

u I regret the decision of the Librarian of Congress, acting upon the recommendation of the Register of Copyrights, to reject the recommendations of the Administration, concerned Members of Congress, universities and libraries in announcing a decision that does not protect traditional fair use rights. This disappointing decision has moved our Nation one step closer to a "pay-per-use" society that threatens to advance the narrow interests of copyright owners over the broader public interest of information consumers. In crafting section 1201(a)(1) of the Digital Millennium Copyright Act, Congress sought to preserve the principle of "fair use" that has served our Nation so well for more than a century. Unfortunately, based on the advice of the Register of Copyrights, the Librarian of Congress today announced his decision to limit the ability of ordinary consumers in most cases to circumvent electronic security measures for the purpose of exercising their non-infringing fair use rights. Consequently, any person who circumvents a technological protection measure to gain access to information to which he has a fair use right will be guilty of a crime. Besser--BayNet--Commodification, 5/22/02

80 Concern about Anti-Circumvention Rulemaking Decision US Dept of Commerce National Telecommunications and Information Administration (NTIA) 9/29/00 letter to Copyright Office from Gregory L. Rohde u NTIA believes that implementation of far-reaching access control technologies without carefully drawn exemptions would not only invert 200 years of judicial interpretation regarding the scope of protections given to copyright holders, but also eviscerate individual scholarship and the notion of free inquiry. NTIAs immediate concern is the very one envisioned by the Commerce Committee when it warned of the development of a legal framework that would inexorably create a pay-per-use society.

Besser--BayNet--Commodification, 5/22/02 81 The Digital Dilemma: Intellectual Property in the Information Age u u The National Research Council & CSTB Nature of a Study common ground btwn stakeholders, not necessarily what is best for NAS or research u Origins of This Study unbundling of previously-grouped packages (publishers/distributors,

works as units, ) changing interpretations of concepts such as first sale and fair use u u Scope of This Study Study focused on US Besser--BayNet--Commodification, 5/22/02 Computer Science and Telecommunications Board 82 A Long Standing Balance: Copyright Law

We must remember that the purpose of copyright law is to create the most efficient and productive balance between protection (incentive) and dissemination of information, to promote learning, culture and development (Whelan v. Jaslow, U.S. Court of Appeals for the Third Circuit, 1986). Besser--BayNet--Commodification, 5/22/02 Computer Science and Telecommunications Board 83 The Digital Dilemma: The Balance Upset

Information in digital form Networks World Wide Web Consequences of these technological developments; natural barriers erode Unbundling- Besser--BayNet--Commodification, 5/22/02 Computer Science and Telecommunications Board

84 Previous bundling becomes unraveled u u u u u works are no longer discrete packages (embodied objects) works become multiple entities roles of author, typist, editor, typesetter, publisher, distributor, user becoming blurred rights like fair use, first sale and personal use take on different meanings access control takes on new meaning

Besser--BayNet--Commodification, 5/22/02 85 Selected Highlights from the Study u u u u u u u Go slow on Legislation Provision needs to be made for traditional entities to preserve works in digital form Legislation criminalizing circumvention of protection mechanisms is

far to broad and harsh Not all classes of works need the same treatment Technological protection methods may prove useful but have their limitsNew Business Models show great promise for solving the problemsWe need reliable research on the economic impact of copying- Besser--BayNet--Commodification, 5/22/02 86 Dangers u u u u u Eliminating a public domain of information Controlling social/political commentary, satire,

creation of new derivative works/recombinant works Criminalizing acts that might possibly impede digital commerce Making sure that the Internet is used only for info consumption, not production Controlling access to older info (controlling history) Besser--BayNet--Commodification, 5/22/02 87 Strong Content Control Threatens Creativity imagine: u Having no public domain to draw upon u Having to negotiate rights for every clip, every drawing, every still image, every sound sample

u Having to renegotiate all these rights every time you redistribute it in a different form or in a different media Besser--BayNet--Commodification, 5/22/02 88 Pragmatic Considerations: Acquiring Digital Materials (1/2) u u Try to own, not license (maybe impossible) Worry about content completeness/integrity Besser--BayNet--Commodification, 5/22/02

89 Pragmatic Considerations: Acquiring Digital Materials (2/2) u With licenses, try to get rights to: Make preservation/back-up copies Transfer to different formats/media Perpetual access Cap on annual license fee raises

Set your own standards for authorized university community (walk-in use, etc.) Do your own user authentication (privacy) Use the work in course readers ILL Besser--BayNet--Commodification, 5/22/02 90 Pragmatic Considerations: Creating Digital Materials (1/2) u u u u u u

u No assurances + laws rapidly changing Providing web access may constitute publishing Clearing rights can be a nightmare Worry about underlying rights Deep linking Masters/Derivatives Standards/Best Practices Besser--BayNet--Commodification, 5/22/02 91 Pragmatic Considerations: Creating Digital Materials (2/2)

u Fair Use Considerations Purpose & character of use Nature of copyrighted work Amount and substantiality used Market effect Besser--BayNet--Commodification, 5/22/02 92 Besser--BayNet--Commodification, 5/22/02

93 Besser--BayNet--Commodification, 5/22/02 94 What is an Information Commons and Why Should We Care? u u u u u u u u

http://www.gseis.ucla.edu/~howard/Copyright/commons.html http://www.gseis.ucla.edu/~howard/Copyright/ http://books.nap.edu/html/digital_dilemma/ http://www.dfc.org http://www.pdos.lcs.mit.edu/~cananian/UCITA/ http://www. gseis.ucla.edu /~howard/Papers/caa-fairuse/sld001.htm http://www.badsoftware.com/ Lee Felsenstein, 'The Commons of Information,' Dr. Dobb's Journal, May 1993 Besser--BayNet--Commodification, 5/22/02 95 Besser--BayNet--Commodification, 5/22/02 96 What has copyright become

u u (1/2) Who actually holds Copyright? Licensing is replacing copyright in the digital age Besser--BayNet--Commodification, 5/22/02 97 Personal Observations u u u u

u u u u u Copying & Access Licensing and Technical Protections Services Archiving and Preservation Opportunities and Challenges for Authors and Publishers Impact of Technical ProtectionBusiness ModelsEconomic Impact of Copyright ViolationsCopyright basis other than Copying Fair Use, derivative works, etc. Besser--BayNet--Commodification, 5/22/02 98 Personal Observations

u u u u u u u u u Copying & Access Licensing and Technical Protections Services Archiving and Preservation Opportunities and Challenges for Authors and Publishers Impact of Technical Protection Business Models Economic Impact of Copyright Violations Copyright basis other than Copying

Fair Use, derivative works, etc. Besser--BayNet--Commodification, 5/22/02 99 For Additional Information... u u u Committee on Intellectual Property Rights and the Emerging Information Infrastructure, National Research Council, National Academy of Sciences. The Digital Dilemma: Intellectual Property in the Information Age, Washington: National Academy Press, 2000 (Jan) http://books.nap.edu/catalog/9601.html

http://books.nap.edu/html/digital_dilemma/ http://www.gseis.ucla.edu/~howard/Copyright http://www.cni.org/ Besser--BayNet--Commodification, 5/22/02 Computer Science and Telecommunications Board 100 Further commodification of information, diminishment of exploration and experimentation- Besser--BayNet--Commodification, 5/22/02 101

Draft of House version of Digital Millenium Bill u u u u u u [This bill] contains a provision that would effect the most dramatic change in copyright law in over one hundred years. Buried in the Digital Millennium Copyright Act, a measure designed to implement new international copyright treaties which bring the rest of the world up with current U.S. law, reads: Section 1201(a). No person shall circumvent a technological protection measure that effectively controls access to a work protected under this title.

While sounding innocuous, what the provision does is create a brand new and unlimited right to control access to copyrighted works. If enacted into law, this new right could bypass the carefully crafted balance between exclusive rights of ownership and public access to works for educational, scholarly, and scientific purposes, which has been part of copyright law for the entire 20th Century. In short, it could eliminate fair use from copyright law. -John Hammer, National Humanities Alliance, 6/5/98 Besser--BayNet--Commodification, 5/22/02 102 House version of Digital Millenium Bill u "H.R. 2281, as drafted, would grant copyright owners a new and unrestricted exclusive right to control access to information in digital

works which could negate one of the most basic principles that has made the U.S. so clearly a leader in intellectual creativity, innovation, and commerce -- the ability to gain access to information in published or publicly available works... By access I mean the right to read and, even more simply, the right to browse published works. Taken another step, it means the right to use works in ways currently allowed by exemptions and limitations in copyright -- expressly crafted by Congress -- to permit fair use, use for library preservation, and use in classroom teaching." u -Prof. Robert Oakley, library director, Georgetown University Law Center, 6/5/98 Besser--BayNet--Commodification, 5/22/02 103

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